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When did "crackhead" become the disparagement de jour? Should addiction be treated any differently than other disabilities?

William Halliday, a recovering addict, took a second job at Van Toen Innovations, checking with car dealerships to get the best deal for the automobile broker's clients.

He had been in 14 residential addiction recovery programs in 23 years. He had experienced homelessness, joblessness and been estranged from family and friends. When he took the job he had been clean for eight months and was anxious to put those days behind him. When the owner Geoffrey Van Toen invited him for a drink one evening, he demurred, explaining his situation.

Van Toen was supportive, so after a weekend relapse, Halliday told Van Toen, who refused to pay his commissions until he checked into a detox program. For 1½ hours, Van Toen drove him to Detoxsites. Halliday testified he felt as if he was being kidnapped. The sites corroborated Halliday's assertion this was not the way admissions occurred.

Relenting, Van Toen drove him home but paid only part of the money, promising to pay the balance when he could. On learning other agents were not being paid their commissions, Halliday called Van Toen and asked him to be honest about any cash flow issues.

Offended, Van Toen called Halliday a "f------crackhead," said the company had done everything to help him and he would be paid when it was.

But it didn't end there. Van Toen sent an email to another agent, referring to Halliday as a former "crackhead" who he believed was stealing from him. Halliday immediately resigned and informed his clients at the car dealerships. He told Van Toen he would invoice the dealers directly for any deals that came in until his commissions were paid.

Van Toen then sent the dealers an email referring to Halliday's "crack addiction" and alleging Halliday had taken shortcuts with dealers and clients and made physical threats against him.

For three months, Halliday tried to start a broker business, working long hours and cutting back on support meetings. But Van Toen's email to the dealers' had made an impact and he could not get his business off the ground.

He again turned to drugs and within seven months, lost everything - his business, his day job and was again homeless. While in treatment, he received an email from Van Toen gloating over his failure. Halliday filed an application with the Ontario Human Rights Tribunal for discrimination based on disability. Van Toen accosted him on the street threatening to kill him and was arrested, charged and entered a Peace Bond.

Maureen Doyle, the Ontario Human Rights Tribunal adjudicator, noted that the appropriate response by any employer faced with a human rights issue is measured by whether it conducted a reasonable investigation once aware of the complaint or poisoned work environment; took the complaint seriously; dealt with it promptly and appropriately; and demonstrated appropriate sensitivity to the concerns of the applicant, including apologizing.

Van Toen did none of these things. Instead, for this string of calumny, the much feared Human Rights Tribunal decided three months earnings was reasonable. Halliday was awarded $4,524 and $25,000 for injury to his dignity, discrimination, a poisoned work environment and reprisal for launching a complaint.

A month earlier, Sharon Fair was awarded by another adjudicator, Kaye Joachim, reinstatement, 10 years' back-pay, pension and CPP adjustments, health and insurance benefits, payment for the tax loss from being paid a 10-year lump sum and interest. In all, likely 15-plus years earnings. And she was awarded $30,000 for injury to her dignity from discrimination because the employer's Record of employment for EI stated inaccurately that she resigned, thereby delaying her benefits. She also was awarded six months of job retraining.

In the fall of 2001, Fair, fearful of being sued for making a mistake at her job that involved asbestos removal at the school board, went on long-term disability. In April 2004, she was declared capable of gainful employment. By July, she was terminated. However, in June 2003, the school board failed to offer her either of two jobs that became available that she could have performed. It claimed it did not do so because those jobs had some health and safety component. Finding that any job had some such responsibility, this was deemed discriminatory and Fair was awarded reinstatement because she testified she bore no ill will to the school board.

So why was Halliday's outrageous treatment worth only $25,000 in general damages while Fair's relatively minor inconvenience, her delay in getting EI, worth $30,000. Why was Halliday, who was driven back into addiction, found to be capable of replacing his job in three months while Fair was awarded 10 years?

employees and employers require predictability. The administration of human rights must change to bear a closer resemblance to a courtroom than a gaming table.

Howard Levitt is senior partner of Levitt LLP, (levittllp.ca) employment and labour lawyers. He practises employment law in eight provinces and is author of The Law of Dismissal in Canada.

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